Hodkiewicz v. Richardson
Filing
21
DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Hodkiewicz's petition for a writ of habeas corpus (Docket # 1 ) is DENIED; IT IS FURTHER ORDERED that a certificate of appealability shall not issue; IT IS FURTHER ORDERED that this action be and hereby is DISMISSED. (cc: all counsel, petitioner)(asc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERIC HODKIEWICZ,
Petitioner,
v.
Case No. 18-CV-900
REED RICHARDSON,
Respondent.
DECISION AND ORDER DENYING
PETITION FOR WRIT OF HABEAS CORPUS
______________________________________________________________________________
Eric Hodkiewicz, a prisoner in Wisconsin custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Habeas Pet., Docket # 1.) Hodkiewicz was convicted of nine
felony and misdemeanor offenses, and sentenced to eight years of initial confinement and
thirteen years of extended supervision. (Id. at 3.) Hodkiewicz contends that his conviction and
sentence are unconstitutional. For the reasons stated below, the petition for writ of habeas
corpus will be denied and the case dismissed.
BACKGROUND
Hodkiewicz’s convictions arose from allegations that he stalked, harassed, and
repeatedly assaulted his now ex-wife, S.P., during their acrimonious divorce and child
custody proceedings. (Wisconsin v. Hodkiewicz, 2016AP359 (Wis. Ct. App. July 18, 2017),
Docket # 1-2 ¶ 1). At trial in March 2014, Hodkiewicz faced nine charges: (1) stalking, as a
party to a crime between May 2010 and January 2013; (2) unlawful use of a telephone, as a
domestic abuse repeater, on August 10, 2012; (3) disorderly conduct, as a domestic abuse
repeater, on August 6, 2012; (4) criminal damage to property, as a domestic abuse repeater,
on November 5, 2012; and on the evening of July 1–2, 2013, all of the following: (5) burglary
of a building or dwelling; (6) substantial battery—domestic abuse, as a domestic abuse
repeater; (7) strangulation and suffocation—domestic abuse, as a domestic abuse repeater; (8)
disorderly conduct—domestic abuse, as a domestic abuse repeater; and (9) bail jumping. (Id.
¶ 3.)
At trial, the prosecution’s theory was that Hodkiewicz was a careful manipulator who
harassed and repeatedly assaulted S.P. while methodically concealing his activities. (Trial
Day 1 Tr. 184–212, Docket # 14-8.) The defense relied primarily on the lack of eyewitnesses
or physical evidence linking Hodkiewicz to the crimes, suggesting that disagreements over
their infant son motivated S.P. to fabricate these allegations against Hodkiewicz. (Trial Day
1 Tr. 214–22, Docket # 14-8.) After a six-day trial, the jury convicted Hodkiewicz on all
counts. (Docket # 14-8 to Docket # 14-18.) The facts as summarized by the court of appeals
are as follows, with additional information and citations to the record as relevant.
S.P. testified that she and Hodkiewicz were married and living together at a residence
on Weed Street in Shawano in May 2010. (Docket # 1-2 ¶ 4.) S.P. was eight months pregnant
and had suffered preeclampsia, which required her to remain on bed rest for much of the
pregnancy. (Id.; Trial Day 2 Tr. 17, Docket # 14-9.) S.P. claimed that on May 13, 2010,
Hodkiewicz pushed her down and rubbed her face against a wall. (Docket # 1-2 ¶ 4.) S.P.
testified she did not immediately report this to police because she was afraid and did not want
Hodkiewicz to get into trouble. (Id.) However, she told Hodkiewicz to leave and not come
back. (Id.) Hodkiewicz left, but he returned several times during the following week. (Id.) As
a result, on May 20, 2010, S.P. reported the May 13 incident to police. (Id.) Hodkiewicz
denied hitting or pushing S.P. on May 13, 2010. (Id. ¶ 6.) However, he admitted grabbing her
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wrist and “kind of pulling back and forth” in an attempt to get his phone and pager, which he
claimed S.P. had taken from him. 1 (Id.) S.P. testified that, on a subsequent occasion in May
2010, Hodkiewicz pushed her down the stairs. (Id. ¶ 5.) On May 24, 2010, Hodkiewicz filed
for divorce. (Id. ¶ 4.)
S.P. also testified regarding an incident on May 27, 2010, in which Hodkiewicz
returned to the residence and chased her into a bathroom. (Docket # 1-2 ¶ 5.) A struggle
ensued, during which Hodkiewicz pushed S.P., causing her to hit her head on the sink. (Id.)
S.P. testified she was knocked unconscious, and regained consciousness when her mother
found her lying on the bathroom floor. (Trial Day 2 Tr. 23–28, Docket # 14-9.) Several
witnesses testified about responding to aid S.P. (Testimony of Karen P., Trial Day 3 part 1
Tr. 74–80, Docket # 14-10; Testimony of Jeff Lenzer, Trial Day 3 Tr. 112–16, Docket # 1410.) S.P. testified that when she went to the emergency room, medical staff questioned her
about her injuries, apparently suspicious of her story that she fell down the stairs, and the
admitting nurse gave her a “safe word” to say if she had concerns for her safety. (Trial Day 2
Tr. 29–33, Docket # 14-9.) The on-call OB/Gyn, Dr. Halloin, testified that S.P. told him she
had been dizzy and fallen; Dr. Halloin testified that preeclampsia does not usually cause
fainting. (Trial Day 3 part 1 Tr. 7–24, Docket # 14-10.) Hodkiewicz denied having any contact
with S.P. on May 27, 2010. (Docket # 1-2 ¶ 6.)
The couple’s son J. was born via emergency c-section on May 28, 2010. (Id.) Dr.
Halloin testified that it was clear the relationship between S.P. and Hodkiewicz was not good,
and that during a conversation with Hodkiewicz outside the delivery room, Hodkiewicz asked
Hodkiewicz eventually pleaded no contest to two counts of disorderly conduct with domestic abuse enhancers
for these early events. He was given a deferred prosecution agreement, required to attend domestic violence
courses, and put on probation in 2012.
1
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about a paternity test for the baby. (Id.) Dr. Halloin testified that at the six-week postpartum
visit, S.P. told Dr. Halloin that her bruising had been caused by Hodkiewicz. (Id.) Dr. Halloin
dictated a letter for S.P.’s file, noting that S.P. said she was hit and was very upset about the
relationship. (Id.) Dr. Halloin explained that in his experience, victims of domestic violence
often do not disclose it, at least initially. (Id.) Dr. Halloin testified that S.P. appeared to have
already reported the incident to police. (Id.)
After J.’s birth, S.P. allowed Hodkiewicz to stay at the Weed Street residence at times
and permitted him to spend time with J. (Docket # 1-2 ¶ 7.) S.P. testified that Hodkiewicz
came to the residence on August 9, 2010, but when S.P. told him it was not “a good time” for
a visit, he became “angry and upset.” (Id.) Sometime after Hodkiewicz left, S.P. observed a
large cut in the side of an above-ground, rubber-sided swimming pool in the yard. (Id.) Two
others testified that they saw the slashed pool: Jed Reinke, who was the father of S.P.’s older
son, and a Shawano police officer. (Testimony of Jed Reinke, Trial Day 3 part 1 Tr. 178–80,
Docket # 14-10; Testimony of Daniel Conradt, Trial Day 3 part 1 Tr. 41–48, Docket # 1410.) Hodkiewicz denied involvement (Docket # 1-2 ¶ 7), and an investigation found no
evidence connecting the pool slashing to Hodkiewicz (Testimony of Daniel Conradt, Trial
Day 3 part 1 Tr. 46–47, Docket # 14-10).
During the same time period, S.P. testified she found a dead rabbit on her doorstep.
(Docket # 1-2 ¶ 7.) S.P. also complained to police that Hodkiewicz would drive by
periodically, and that he carried a tape recorder with him. (Testimony of Daniel Conradt,
Trial Day 3 part 1 Tr. 43, Docket # 14-10.) Hodkiewicz testified that he knew nothing of the
dead rabbit but admitted that he carried a voice recorder on the advice of his attorney and law
enforcement. (Trial Day 5 Tr. 103–04, Docket # 14-16.)
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On September 1, 2010, S.P. found an insult keyed into the door of her vehicle. (Docket
# 1-2 ¶ 7.) S.P. testified the vehicle was in a locked garage, and that Hodkiewicz had a key
and a garage door opener. (Trial Day 2 Tr. 38–39, Docket # 14-9.) S.P.’s father testified that
he saw the insult in S.P.’s car door, and saw a garage door opener on the visor of Hodkiewicz’s
vehicle. (Testimony of David P., Trial Day 1 Tr. 227–33, Docket # 14-8.) The officer who
responded testified that he found no evidence linking this incident to Hodkiewicz, and did
not retrieve the garage door opener reportedly in Hodkiewicz’s truck. (Testimony of Ryan
Atkinson, Trial Day 3 Tr. 31–40, Docket # 14-10.)
Several days later, S.P. found a red liquid in her dog’s dish, which her father believed
to be antifreeze. (Docket # 1-2 ¶ 7.) She approached Hodkiewicz about it, and he told her not
to worry because it was not the toxic kind of antifreeze, a level of knowledge that concerned
her. (Trial Day 2 Tr. 40–41, Docket # 14-9.) Hodkiewicz denied involvement (Docket # 1-2
¶ 7) and testified that he only happened to know that green antifreeze was toxic while red was
not (Trial Day 5 Tr. 93–95, Docket # 14-16).
In spring 2011, Hodkiewicz moved to the marital home and S.P. moved to a home in
the village of Pulaski, but still in Shawano County. (Docket # 1-2 ¶ 8; Testimony of S.P., Trial
Day 2 Tr. 45, Docket # 14-9.) In September 2011, S.P. testified that she found the body of a
stray cat hanging from a tree outside her home. (Docket # 1-2 ¶ 8.) Around the same time,
S.P. testified that she found a “pretty big pile of animal guts” in her driveway. (Id.) Again,
Hodkiewicz denied involvement in these incidents. (Id.)
S.P. further testified that, on the evening of December 9, 2011, she was home alone
and went to her garage to take out some recycling. (Docket # 1-2 ¶ 9.) While there, she was
struck on the head, which caused her to fall and hit her chin on the cement floor. (Id.) When
5
she tried to get up, someone struck or kicked her leg. (Id.) While she was on the floor, S.P.
heard Hodkiewicz say that she was crazy, that she should not have J., and that she should
call the police because they also thought she was crazy. (Id.) S.P. testified that when her
assailant left, she called her mother, and they went to the emergency room. (Trial Day 2 Tr.
58–59, Docket # 14-9.) The emergency room doctor, Dr. Zifferblatt, testified that S.P. said
she had been assaulted by her husband and she thought she had been hit by shovel, but she
refused to report the incident to police despite encouragement from himself and the nurses.
(Testimony of Jocko Zifferblatt, Trial Day 3 Tr. 25–30, Docket # 14-10.) S.P. testified that
she talked to a domestic violence shelter, Safe Haven, and reported the December 9 incident
to police a few days after it happened. (Trial Day 2 Tr. 60–61, Docket # 14-9.) Police collected
a snow shovel from the scene and took a picture showing how S.P.’s injuries fit the handle of
the snow shovel. (Testimony of Troy Ugoretz, Trial Day 3 part 1 Tr. 163–72, Docket # 1410.) A DNA swab on the shovel revealed no identifiable DNA. (Testimony of Randal
Dunford, Trial Day 4 part 2 Tr. 14–17, Docket # 14-13.)
Hodkiewicz denied striking or otherwise harming S.P. on December 9, 2011. (Docket
# 1-2 ¶ 10.) It was undisputed that Hodkiewicz had placement of J. that night. (Id.) In
addition, Hodkiewicz’s neighbor, Kyle Thorson, testified that he heard Hodkiewicz’s garage
door open sometime between 7:30 and 8:00 p.m. that evening, “so [he] knew [Hodkiewicz]
was backing his truck in.” (Id.) Thorson testified that he texted Hodkiewicz and then went
over to Hodkiewicz’s garage sometime between 8:00 and 8:30 p.m., and they talked for sixty
to ninety minutes. (Id.)
On January 26, 2012, Hodkiewicz was placed on probation for the May 2010
disorderly conduct convictions. (Testimony of Julie Krause, Trial Day 2 Tr. 232–56, Docket
6
# 14-9.) His probation officer, Julie Krause, testified that she encouraged S.P. to call her and
that she developed a rapport with S.P., who called up to 150 times during Hodkiewicz’s oneyear probation. (Id.) Krause testified that Hodkiewicz was returned to custody six times
during his probation, most of which were in response to information from S.P. (Id.) Krause
stated that Hodkiewicz was put on a proximity monitor in part at Hodkiewicz’s request. (Id.)
S.P. testified that in January 2012 she found an anonymous note inside her mailbox
that said “u r dun,” and on another occasion during the same time frame she found a live cat
inside her mailbox. (Docket # 1-2 ¶ 11.) Around that time, her dog went missing and was
found thirty miles away. (Id.) On February 1, 2012, S.P. discovered garden shears stuck into
the driver’s seat of her vehicle and a meat fork stuck into J.’s car seat. (Id.) A Shawano County
deputy testified that he was unsuccessful in finding any fingerprints on either item, opining
that they could have been wiped down or the perpetrator could have worn gloves. (Testimony
of James Hauer, Trial Day 2 Tr. 217–18, Docket # 14-9.) Hodkiewicz denied involvement in
these incidents. (Docket # 1-2 ¶ 11.)
In March 2012, S.P. moved in with her parents. (Id. ¶ 12.) She testified that at that time
she began a new job and obtained a new phone number that she did not give to Hodkiewicz.
(Testimony of S.P., Trial Day 2 Tr. 76–77, Docket # 14-9.) In late spring and into summer of
2012, S.P. received a large number of calls on her phone from a restricted or unknown
number. (Id. Tr. 76–81.) At some point, S.P. began to answer the calls in an attempt to
determine who was making them. (Docket # 1-2 ¶ 23.) On July 13 and July 20, 2012, the
caller made insulting remarks and S.P. recognized the caller’s voice as Hodkiewicz’s. (Id.) In
a July 27, 2012 call, the caller made insulting comments but S.P. testified she could not
identify the caller’s voice because she was at work and it was difficult to hear. (Id.) Also in
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July 2012, S.P. received an insulting text message with the letter “u” in place of “you.” (Id.)
A Shawano County deputy testified that S.P. reported the phone calls in July 2012 and
showed him her call log with numerous calls from unknown or restricted numbers.
(Testimony of James Hauer, Trial Day 2 Tr. 217–18, Docket # 14-9.)
In late July 2012, S.P. moved from her parents’ home to an apartment in Brown
County. (Docket # 1-2 ¶ 14.) She reported the continuing phone calls to Pulaski police in
August 2012. (Testimony of Mark Hendzel, Trial Day 4 Tr. 4, Docket # 14-15.) Officer
Hendzel, a Pulaski Police Department investigator, testified that S.P. appeared intimidated
and said she felt harassed and threatened. (Id. Tr. 6–7.) Hendzel also testified that the phone
records he subpoenaed and reviewed corroborated S.P.’s account of the calls from
“unknown” or “restricted” numbers. (Id. Tr. 75.) Hendzel explained that police traced some
of the harassing phone calls and texts to a specific TracFone. (Docket # 1-2 ¶ 13.) The
activation number for the TracFone was the general number for Little Rapids Paper
Corporation, where Hodkiewicz worked. (Testimony of Mark Hendzel, Trial Day 4 Tr. 11–
13, Docket # 14-15.) Hodkiewicz denied activating or using the TracFone that was used to
call and text S.P. (Docket # 1-2 ¶ 14.) Moreover, Hodkiewicz was in custody at the Shawano
County Jail on a probation hold on May 12, 2012, the date the TracFone was activated. (Id.)
S.P. testified that she did not tell people other than her parents that she was moving to
an apartment in Brown County at the end of July, 2012. (Testimony of S.P., Trial Day 2 Tr.
81-82.) On August 6, 2012, she found some flowers outside the door. (Docket # 1-2 ¶ 14.)
S.P. testified she “assumed that somebody either left [the flowers] in the wrong spot or they
were . . . from the apartment complex.” (Id.) However, on August 10, 2012, she received a
phone call in which the caller asked, “Did you get them?” (Id.) When S.P. did not respond,
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the caller said, “[Y]ou did,” and then laughed. (Id.) S.P. testified she recognized the caller as
Hodkiewicz. (Id.) Hodkiewicz denied delivering flowers to S.P. or calling her on August 10,
2012. (Id.) S.P. testified that on September 26, 2012, she found flowers on the outdoor balcony
of her second-floor apartment. (Docket # 1-2 ¶ 15.) A DNA swab on the second set of flowers
was negative for Hodkiewicz. (Testimony of Randal Dunford, Trial Day 4 part 2 Tr. 14–17,
Docket # 14-13.)
In early October 2012, law enforcement searched Hodkiewicz’s house for the
TracFone and did not find it, though they found multiple other phones at the residence.
(Testimony of Randal Dunford, Trial Day 4 part 2 Tr. 22–24, Docket # 14-13; Testimony of
Mark Hendzel, Trial Day 4 part 4 Tr. 17–22, Docket # 14-15.) Officers also interviewed
Hodkiewicz twice, and he denied involvement in the phone calls. (Testimony of Mark
Hendzel, Trial Day 4 part 4 Tr. 23, Docket # 14-15.) On November 5, 2012, S.P. found an
insult scratched into the driver’s side door of her vehicle, using a lowercase “u” in place of
“you.” (Id.)
In May 2013, Hodkiewicz had been charged with stalking, placed on probation, and
told to have no contact with S.P. Police had installed a VARDA alarm in S.P.’s apartment,
placing it up high in the kitchen to keep it away from children. (Testimony of S.P., Trial Day
2 Tr. 91–92.) In May 2013, S.P. believed she saw Hodkiewicz driving hear her home, and in
June 2013, she reported that the rearview mirror on her car was damaged and saw a vehicle
registered to Hodkiewicz’s father near her residence. (Id. Tr. 92–93.) Hodkiewicz denied
involvement with the rearview mirror (Trial Day 5 Tr. 129, Docket # 14-16), and DNA testing
on the rearview mirror was negative for Hodkiewicz (Testimony of Randal Dunford, Trial
Day 4 part 2 Tr. 27, Docket # 14–13).
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On the night of July 1–2, 2013, J. was staying with Hodkiewicz at Hodkiewicz’s
parents’ residence. (Id. ¶ 16.) S.P. testified she fell asleep on the couch in her apartment at
around 10:30 p.m. (Id.) She had taken Percocet because she was recovering from hand
surgery, and she admitted the events of that evening were somewhat “fuzzy.” (Id.) She fell
asleep sucking on a lollipop to ease the nausea caused by the pain medication. (Trial Day 2
Tr. 96, Docket # 14-9.) At some point, S.P. woke up and went into the bathroom. (Docket #
1-2 ¶ 16.) As she turned on the bathroom light, she felt something—possibly a rubber tube—
being wrapped around her neck. (Id.) She also felt something over her mouth that “tasted like
powder” or latex. (Id.) A struggle ensued, during which S.P. testified she saw Hodkiewicz’s
reflection in the bathroom mirror. (Id.) S.P. lost consciousness and later woke up lying on the
bathroom floor, naked from the waist down. (Id.). The lollipop was on the floor, with parts of
it stuck in her hair, and the bathroom door was damaged. (Trial Day 2 Tr. 107–08, Docket #
14-9.)
S.P. testified that she left the bathroom to retrieve her phone, locked herself in the
bathroom, and called her mother, then Reinke, then 9-1-1. (Id. Tr. 105–06.) She was taken to
St. Mary’s hospital, then transferred to St. Vincent’s for a SANE (sexual assault) exam. (Id.
at 110.) The SANE nurse, Larraine Borroughs, testified about the exam she performed on
S.P. (Trial Day 3 part 2 Tr. 3–20, Docket # 14-11; Trial Day 4 part 1 Tr. 18–35, Docket # 1412.) DNA testing on the SANE kit was negative for Hodkiewicz. (Testimony of Randal
Dunford, Trial Day 4 Tr. 16–17, Docket # 14-13.)
Law enforcement attempted unsuccessfully to locate Hodkiewicz after the assault on
S.P. (Testimony of James Hauer, Trial Day 2 Tr. 212–25, Docket # 14-9.) Between 4:00 a.m.
and 8:00 a.m., an officer drove by Hodkiewicz’s parents’ house repeatedly, as well as the
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former marital home and Hodkiewicz’s workplace, and did not see Hodkiewicz’s truck at any
location. (Id.) Officers took S.P.’s entire bathroom door for testing and found only S.P.’s DNA
on it. (Testimony of Randal Dunford, Trial Day 4 Tr. 17, Docket # 14-13.)
Hodkiewicz testified he was at his parents’ home with J. on the night of July 1–2, 2013.
(Docket # 1-2 ¶ 17.) Hodkiewicz’s mother testified she saw Hodkiewicz go to bed at about
9:30 p.m. on July 1, and she next saw him at 6:40 a.m. the following morning. (Id.) She did
not hear Hodkiewicz leave the house during the night. (Id.) Hodkiewicz’s father testified he
returned home from a meeting at 10:20 p.m. on July 1 and saw Hodkiewicz’s truck parked
near the family’s home. (Id.) He testified he did not hear Hodkiewicz leave the house until
5:00 a.m. the next morning. (Id.)
The manager of S.P.’s apartment complex testified that, although it was difficult, it
was possible to access second-floor balconies using furniture on patios beneath, and there was
furniture beneath S.P.’s balcony. (Testimony of Peggy Campbell, Trial Day 2 Tr. 225–31,
Docket # 14-9.) Pulaski Police Chief Randal Dunford testified about photos he took of S.P.’s
balcony as well as a “patio set” and a dented air conditioning unit below the balcony.
(Testimony of Randal Dunford, Trial Day 4 Tr. 7–11, Docket # 14-13.)
In its closing argument, the prosecution described Hodkiewicz as “careful” and
“methodical,” and pointed to evidence that corroborated S.P.’s claims: the physical injuries,
the shovel that lined up perfectly with the injury to her face, the notes, the insults scratched
in the car, the phone records, the gardening shears and meat fork stuck in the car seats, the
linear marks on her neck and the sucker on the floor, the dent in the air conditioning unit
underneath S.P.’s balcony, etc. (Trial Day 6 part 1 Tr. 148–75, 201–20, Docket # 14-17.) The
defense argued that while it did not dispute that S.P. had been injured, there was no evidence
11
linking those injuries or any of the other alleged crimes to Hodkiewicz. (Id. Tr. 175–201.)
After deliberating for under five hours, the jury returned a verdict of guilty on all counts. (Id.
Tr. 230–31.)
Shortly after trial, counsel for Hodkiewicz filed a motion for judgment
notwithstanding the verdict based on insufficiency of the evidence, and for a new trial based
on court errors. (Docket # 12-7.) After a hearing on the motion, the circuit court denied it.
(Docket # 12-8.)
Hodkiewicz moved for post-conviction relief with eleven distinct arguments, including
those he raises in this petition. (Docket # 14-1.) The circuit court held three evidentiary
hearings before denying the motion in its entirety, with the exception of correcting an error in
calculating Hodkiewicz’s sentence. (Docket # 14-20, Docket # 14-21, Docket # 14-22,
Docket # 10-4 at 60–87.) The court of appeals reversed Hodkiewicz’s convictions on Counts
2 and 3 related to the August 2010 incident with the flowers and phone call 2 (Docket # 1-2 ¶¶
36–43), but otherwise affirmed the denial of Hodkiewicz’s post-conviction motion (Docket #
1-2). Hodkiewicz timely filed a petition for a writ of habeas corpus in this court. (Docket #
1.)
STANDARD OF REVIEW
Hodkiewicz’s petition is governed by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court
decision on the merits of the petitioner’s claim (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) “was based on an unreasonable
Because Hodkiewicz’s convictions on Counts 2 and 3 were reversed, Hodkiewicz’s petition is moot as to those
counts.
2
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determination of the facts in light of the evidence presented in the State court proceeding,” 28
U.S.C. § 2254(d)(2).
A state court’s decision is “contrary to . . . clearly established Federal law as established
by the United States Supreme Court” if it is “substantially different from relevant [Supreme
Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (quoting Williams
v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit recognized the narrow
application of the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ of
habeas corpus . . . where the state court applied a rule that contradicts the
governing law as expounded in Supreme Court cases or where the state court
confronts facts materially indistinguishable from a Supreme Court case and
nevertheless arrives at a different result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever the
state court ‘unreasonably applied [a clearly established] principle to the facts of the prisoner’s
case.’” Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748–49 (7th Cir. 1997).
In Morgan v. Krenke, the court explained that:
Unreasonableness is judged by an objective standard, and under the
“unreasonable application” clause, “a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.”
232 F.3d 562, 565–66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532 U.S.
13
951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must determine
that the state court decision was both incorrect and unreasonable. Washington, 219 F.3d at
627.
Habeas relief is available only for state court decisions that are contrary to federal law.
This court may not review whether a state court properly applied its own state laws. Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
ANALYSIS
Hodkiewicz argues that he is entitled to a writ of habeas corpus due to (1) violation of
the Confrontation Clause by the use of hearsay evidence (Docket # 1 at 7, Docket # 1-1 at 5–
7, Docket # 15 at 12–14); (2) violation of due process by the use of testimony the State knew
or should have known was false (Docket # 1 at 8, Docket # 1-1 at 7–10, Docket # 15 at 14–
21); (3) ineffective assistance of trial counsel for failing to object to the hearsay/confrontation
violation, object or respond to the State’s false evidence, or properly respond to other
misleading testimony (Docket # 1 at 9, Docket # 1-1 at 10–13, Docket # 15 at 21–36); and
(4) violation of the Double Jeopardy Clause by conviction and sentencing for both bail
jumping and strangulation (Docket # 1 at 10, Docket # 15 at 36–39).
1.
Procedural Default
Respondents argue that Hodkiewicz forfeited his confrontation, due process, and
double jeopardy challenges by not objecting on those grounds at trial. (Docket # 18 at 14.)
Hodkiewicz replies that these claims are not forfeited because the court of appeals did not
actually rely on procedural default to deny his claims. (Docket # 20 at 2–3.)
A federal court may not review a question of federal law decided by a state court if the
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decision of the state court rests on a state procedural ground that is independent of the federal
question and adequate to support the judgment. Moore v. Bryant, 295 F.3d 771, 774 (7th Cir.
2002). The independent and adequate state ground doctrine “applies to bar federal habeas
when a state court declined to address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement.” Id. (internal quotation and citation omitted).
To conclude that a petitioner has procedurally defaulted a claim due to an adequate and
independent state ground, this Court “must be convinced that the last state court to consider
the question actually relied” on a procedural ground “as the basis for its decision.” Braun v.
Powell, 227 F.3d 908, 912 (7th Cir. 2000) (internal citations omitted). The state court’s reliance
on a procedural rule therefore must be explicit. See id. Furthermore, “the state’s procedural
rule must be both ‘firmly established and regularly followed,’” applied consistently and
frequently, and will not be an adequate ground for procedural default “if the prisoner ‘could
not fairly be deemed to have been apprised of its existence’ at the time [he] acted.” Id. (internal
citations omitted).
Procedural default may be overcome by a showing of “cause” excusing the default and
resulting “prejudice.” Rodriguez v. Young, 906 F.2d 1153, 1158–59 (7th Cir. 1990) (citing
Wainwright v. Sykes, 433 U.S. 72 (1977)). In some cases, ineffective assistance of counsel may
excuse the default if the ineffectiveness rises to the level of a constitutional deprivation. Id. at
1159. Additionally, procedural default may be overcome in certain cases where there would
otherwise be a deprivation of due process resulting in a fundamental miscarriage of justice.
Id. at 1159 (citing Murray v. Carrier, 477 U.S. 478 (1986)).
The court of appeals found that because Hodkiewicz had not objected to the admission
of hearsay evidence and allegedly false evidence at trial, he had waived those stand-alone
15
constitutional claims. (Docket # 1-2 ¶¶ 20, 48.) Thus, I conclude that Hodkiewicz’s Ground
One and Two challenges are barred by an independent and adequate state procedural ground.
Additionally, Hodkiewicz has not shown cause for and prejudice to excuse the procedural
default.
In contrast, the court of appeals did not invoke an independent and adequate state
procedural ground in its decision on Hodkiewicz’s double jeopardy claim. Instead, the court
found that, as Hodkiewiecz conceded, the claim was contrary to controlling precedent. (Id. ¶
65.) Because the court of appeals reached the merits of Hodkiewicz’s double jeopardy claim,
albeit briefly, it is not procedurally barred and will be addressed below.
2.
Ground Three: Ineffective Assistance of Counsel
Hodkiewicz’s Ground Three claims that trial counsel rendered constitutionally
ineffective assistance by failing to object or properly respond to testimony that was hearsay,
false, and/or misleading. (Docket # 1 at 9, Docket # 1-1 at 10–13.)
The clearly established Supreme Court precedent for ineffective assistance of counsel
is set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance
of counsel, Hodkiewicz must show both “that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.” Id. at 687. To satisfy Strickland’s
performance prong, the defendant must identify “acts or omissions of counsel that could not
be the result of professional judgment.” United States ex rel. Thomas v. O’Leary, 856 F.2d 1011,
1015 (7th Cir. 1988) (citing Strickland, 466 U.S. at 690). “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’ not whether
it deviated from best practices or most common custom.” Harrington v. Richter, 131 S. Ct. 770,
788 (2011) (quoting Strickland, 466 U.S. at 689). A reviewing court must seek to “evaluate the
16
conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. We “must indulge
a strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance,” id., and “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable,” id. at 690.
To establish prejudice, it is “not enough for the defendant to show that his counsel’s
errors had some conceivable effect on the outcome of the [trial].” Hough v. Anderson, 272 F.3d
878, 891 (7th Cir. 2001). A petitioner must show “that there is a reasonable probability that,
but for counsel’s errors, the result of the [trial] would have been different.” Strickland, 466
U.S. at 694. This does not mean that the defendant must show that “counsel’s deficient
conduct more likely than not altered the outcome in the case.” Id. at 693. Rather, a
“reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. Making this probability determination requires consideration of the totality of the
evidence before the jury. Id. at 695. A “verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record
support.” Id. at 696. Additionally, under Seventh Circuit precedent, a petitioner may
demonstrate that the cumulative effect of counsel’s individual acts or omissions was
substantial enough to meet Strickland’s prejudice test. Williams v. Washington, 59 F.3d 673, 682
(7th Cir. 1995) (citing United States ex rel. Kleba v. McGinnis, 796 F.2d 947, 958 (7th Cir. 1986);
Montgomery v. Petersen, 846 F.2d 407, 412 (7th Cir. 1988)).
A court deciding an ineffective assistance claim need not approach the inquiry “in the
same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a result
17
of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed. Courts
should strive to ensure that ineffectiveness claims not become so burdensome to defense
counsel that the entire criminal justice system suffers as a result.” Id.
2.1.
TracFone Activation Testimony
The State sought to prove that Hodkiewicz made a series of harassing phone calls to
S.P. using a certain TracFone. The records of this TracFone showed 146 calls to S.P. in a
two-month period in 2012, and no calls to anyone else. Undisputed evidence showed that the
“activation number” for the TracFone was the number for Little Rapids Paper Corporation,
where Hodkiewicz worked. Hodkiewicz had previously given the same number to his
probation agent as a contact number. There was one glitch in the State’s narrative, however:
On the day the TracFone had been activated—May 12, 2012—and on dates when at least
seventeen of the calls to S.P. were placed, Hodkiewicz was in custody in the Shawano County
Jail. He was not at work on May 12, 2012 so he could not have activated the phone from
work, and the only phone calls he should have been able to make while in custody should
have been on the jail’s recorded line.
In this context, Hodkiewicz criticizes counsel’s failure to object to Officer Hendzel’s
testimony that a TracFone technical support provider told him that the “activation number”
is not necessarily the number the activator is calling from; in other words, a TracFone may
be remotely activated. Hendzel testified as follows:
Q:
A:
Q:
And a TracFone, are you familiar with TracFone?
I am.
Based upon your training and experience in investigation, have you also
spoken to support, technical support with TracFone?
18
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
I have.
Now, with respect to your training and experience, are you familiar with
respect to what the significance is of an activating number with regard
to a TracFone?
It’s just a secondary number that they’re required during the activation
process.
So when it is indicated that there is actually a number that a TracFone
is activated from, that’s not the number, necessarily, that someone’s
physically at; is that correct?
That is what I have learned, yes.
And that's what you’re aware of?
Correct.
And with respect to that, when I’m talking about whether somebody is
physically at a number, it’s something that can be remotely activated; is
that right?
Correct.
So one person can activate a TracFone from another location, but still
put an activating number they’re not at?
Correct.
(Docket # 14-15 at 14–15.)
The court of appeals concluded that Hodkiewicz was not prejudiced by counsel’s
failure to object to this testimony because other strong evidence linked Hodkiewicz to the
phone calls. (Docket # 1-2 ¶¶ 24–25, 29.) I agree. The prosecution portrayed Hodkiewicz as
a careful manipulator who skillfully evaded detection, and the jury evidently believed it. It
seems unlikely, then, that uncertainty about how Hodkiewicz activated a TracFone from jail
would have planted serious doubt in the jury’s mind that Hodkiewicz used the TracFone to
harass S.P. Therefore, Hodkiewicz is not entitled to habeas relief on this claim.
2.2.
“Special Privileges” Testimony
After defense counsel questioned Hendzel about the fact that Hodkiewicz was in the
Shawano County Jail on the date the TracFone was activated, the State elicited the following
testimony on redirect:
Q:
Officer Hendzel, at the time Eric Hodkiewicz had been at the Shawano
County Jail, did you actually, as part of this investigation, receive some
19
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
information that he had access to phones in the jail?
I had received information that he had a person that was related to him
working in the jail.
And let’s run through that. Doesn't he have a relative, a Sarah
Hodkiewicz?
Apparently that’s the name, yes.
And are you also aware of a Sam Williams Krueger being a relative of
his working in the jail?
There’s a Krueger. I can’t remember the full name of some people, but
yes, there was a Krueger that worked in the jail.
And a Troy Beyer, who’s actually the shift commander for the jail in the
evening shift, a third cousin of Eric Hodkiewicz?
I have been made aware of it.
So there was information that Eric Hodkiewicz had actually had family
members working in the jail supplying him with some special privileges;
isn’t that true?
True.
Including getting out of his cell and having access to phones?
Correct.
(Testimony of Mark Hendzel, Trial Day 4 Tr. 70–71, Docket # 14-15.) As with the activation
number testimony, Hodkiewicz argues that counsel ought to have objected because this was
hearsay that violated his right to confront witnesses against him. (Docket # 15 at 23.)
The court of appeals rejected Hodkiewicz’s claim, finding that even if the testimony
was inadmissible hearsay, there was no prejudice. (Docket # 1-2 ¶ 35.) The court explained
that other testimony undermined Hendzel’s “special privileges” testimony, including: Henzel
testified that it would have been criminal for any jail employee to give Hodkiewicz special
treatment, that he had not investigated whether Hodkiewicz received special treatment, and
that he had no personal knowledge as to whether Hodkiewicz had access to a phone in jail;
Hodkiewicz denied in his trial testimony that he had access to a phone in jail; and
Hodkiewicz’s trial attorney had emphasized in his closing argument the lack of evidence that
Hodkiewicz received special treatment in jail. (Id. ¶ 31.) Additionally, the court of appeals
explained that this testimony would not have affected the verdict on Counts 2 through 9
20
because those counts were unrelated to any phone calls S.P. allegedly received while
Hodkiewicz was in jail, or on Count 1 (the stalking charge) because even without considering
any of the phone calls, there was ample evidence for the jury to find Hodkiewicz guilty of
stalking. (Id. ¶¶ 31–34.)
As with the activation number testimony, I find the court of appeals’ conclusion that
there was no prejudice to be reasonable. In addition to the reasons stated by the court of
appeals, even if counsel had objected and the jury had not considered Hendzel’s testimony,
the jury still could have considered Hodkiewicz’s own admission that he had at least three
relatives who worked at the Shawano County Jail while he was in custody there. (Docket #
12-18 at 21–22.) The jury did not need Hendzel’s testimony to infer that relatives might have
helped Hodkiewicz in jail; it was an obvious inference. While perhaps Hendzel’s testimony
gave this narrative additional weight, it appears extremely unlikely that an objection would
have led to Hodkiewicz’s acquittal on the stalking charge. Because the court of appeals’
conclusion that counsel’s failure to object did not prejudice Hodkiewicz was not contrary to
or an unreasonable application of Strickland, Hodkiewicz is not entitled to habeas relief on
this claim.
2.3.
“Work Phone” Testimony
The court of appeals agreed with Hodkiewicz that counsel was deficient for failing to
object to Hendzel’s hearsay testimony that S.P. told him she received the August 10, 2010
call on her work phone rather than her cell phone, and that this prejudiced him on Counts 2
and 3. (Docket # 1-2 at ¶¶ 36–43.) However, the court of appeals explained that it found no
prejudice on the other counts. (Id. n.7.)
Hodkiewicz argues that counsel’s failure to object to Hendzel’s work phone testimony
21
prejudiced him not only on Counts 2 and 3, but on the other counts as well. (Petitioner’s
Reply Br., Docket # 20 at 2.) Hodkiewicz asserts that because S.P.’s phone records showed
only calls from Reinke on that day, then, but for Hendzel’s testimony, the jury must have
concluded that S.P.’s identification of Hodkiewicz’s voice was either false or mistaken
(Docket # 20 at 12–13), which would in turn have destroyed the credibility of all S.P.’s
identifications of Hodkiewicz (id.; Docket # 15 at 34).
Although Hodkiewicz makes a compelling argument that counsel’s failure was relevant
to all the counts because of the effect of the testimony in bolstering S.P.’s credibility, the court
of appeals’ conclusion that he was not prejudiced was a reasonable one. The jury heard thirtyfive witnesses, including both S.P. and Hodkiewicz, and examined ninety-two exhibits. It had
many data points on which to base its determination of S.P.’s credibility. In that context, it
was reasonable for the court of appeals to conclude that even if counsel’s objection might have
saved Hodkiewicz on the two counts that relied on the jury finding that Hodkiewicz made
that phone call, there is not a reasonable likelihood that counsel’s objection to this one piece
of testimony would have so changed the jury’s credibility determination that they would have
acquitted Hodkiewicz on all the other counts.
2.4.
False Testimony
Hodkiewicz argues that counsel’s failure to respond appropriately to certain evidence
that counsel knew or should have known to be false constituted ineffective assistance of
counsel. (Docket # 15 at 24.) In addition to Hendzel’s allegedly false testimony that S.P.
received the August 10 call on her work phone rather than her cell phone, discussed above,
Hodkiewicz points to Hendzel’s testimony that Hodkiewicz admitted telling his coworkers
that he would be better off if S.P. were “underground,” i.e. dead. (Id.)
22
In cross-examining Hodkiewicz, the prosecution asked him whether, in his interview
with Hendzel in October 2012, he had admitted saying something to his coworkers about his
life being easier if S.P. were “under the ground, referring to her being dead.” (Trial Day 6 part
1 Tr. 36–39, Docket # 14-17.) Hodkiewicz repeatedly denied that he admitted making such a
comment. (Id.) In rebuttal on the last day of trial, the prosecution brought Hendzel back to
testify about this alleged statement, as follows:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
And at some point when you were speaking with Mr. Hodkiewicz, was
there a discussion about whether or not he had indicated that he would
be better off if [S.P.] were underground?
He stated he may have said that to coworkers.
And with respect to that, did he initially deny saying it?
Correct.
And after you questioned him further, did he admit to saying, but said
it was a joke?
He did.
And when you talked to him, he was admitting he said it; isn’t that
correct?
Correct.
It wasn’t that other people said it and he heard it. It was that he said it?
Correct.
(Trial Day 6 part 2 Tr. 6, Docket # 14-18.) However, contrary to Hendzel’s testimony, a video
recording of the interview contains no such admission by Hodkiewicz. In fact, it shows
Hodkiewicz’s repeated denials. Hendzel’s own report of the interview confirms this:
I asked HODKIEWICZ if he remembered any conversation taking place when
someone made the comment that life would be easier if [S.P.] was under the
ground, referring to her being dead. HODKIEWICZ denied ever making such
statement but admitted that this may have been said by co-workers, stated a
second time that he never made such statements and said that this was nothing
more than a joke. HODKIEWICZ stated that this type of statement may have
been made. I asked HODKIEWICZ to be honest with me about the
conversations. HODKIEWICZ said that this was nothing more than a joke.
(Docket # 14-1 at 17.)
The circuit court acknowledged that the recording of Hendzel’s interview with
23
Hodkiewicz, and Hendzel’s own report, support Hodkiewicz’s assertion that he never
admitted making such a statement. (Docket # 10-4 at 75.) The circuit court nevertheless
concluded that Hendzel’s testimony was not, in fact, false. It reasoned:
The evidence set forth by Hodkiewicz here does not demonstrate that
Investigator Hendzel lied about this statement, and therefore [counsel] was not
deficient in failing to object to it as false testimony. . . . While Hodkiewicz may
never have explicitly admitted that he did make such a statement to Investigator
Hendzel, his answers to Investigator Hendzel’s question about the alleged
conversation clearly changed over the course of the conversation. This shift in
Hodkiewicz’s answers could reasonably have been construed as an admission
by Investigator Hendzel, and thus his testimony was not false but merely
indicative of what he remembered of his conversation with Hodkiewicz.
(Docket # 10-4 at 75–76.) The court of appeals upheld this finding as not clearly erroneous.
(Docket # 1-2 ¶ 49.)
Hodkiewicz argues that the conclusion that Hendzel did not testify falsely is
inexplicable, given that both the circuit court and the court of appeals acknowledged that
Hodkiewicz did not admit making any such statement. (Docket # 15 at 19.) I agree. The
testimony was false, and it was unreasonable of the state courts to find otherwise.
However, Hodkiewicz is nevertheless not entitled to habeas relief on this claim,
because the court of appeals reasonably found that the testimony did not prejudice him.
(Docket # 1-2 ¶ 50) Hendzel’s “underground” testimony was only one of many pieces of
evidence the prosecution cited as evidence of Hodkiewicz’s motive and lack of credibility,
including testimony that Hodkiewicz refused to take visitation so that he could take S.P. to
court and have her found in contempt; testimony that Hodkiewicz indicated in domestic
violence counseling that one of his goals was to crush his partner and take the child from her;
testimony that Hodkiewicz requested a paternity test at the hospital when his child was born;
testimony that Hodkiewicz failed to mention his supposed alibi for the shovel incident when
24
he made a timeline of events with Detective Wudtke; the fact that only a handful of TracFone
calls were placed to S.P. on days Hodkiewicz was incarcerated, yet seventy-two were placed
the day after he was released; Hodkiewicz’s refusal to answer the question about which
coworkers were commenting that he would be better off if S.P. were underground;
Hodkiewicz’s prior criminal convictions; Hodkiewicz’s failure to admit to interviewing
officers that he installed an unlawful water bypass at his home until he was confronted with
evidence that proved it; Hodkiewicz’s acknowledgement that he lied to an officer in May 2010
when he stated that he did not attack S.P.; testimony that Hodkiewicz could not complete his
course of counseling for domestic violence or his probation; and testimony from several
witnesses that Hodkiewicz displayed passive-aggressive, angry, and untruthful behavior. At
the evidentiary hearing on the post-conviction motion, counsel for Hodkiewicz admitted that
Hendzel’s testimony was not helpful, but stopped far short of opining that it made any
difference. (Docket # 14-20 at 39.) Rather, he stated that “[i]t just added insult to injury. More
of the same of the types of things the State was asserting.” (Id.)
In its final remarks, the prosecution juxtaposed all this evidence of Hodkiewicz’s
motive and lack of credibility with evidence of S.P.’s credibility, including: photo and medical
verification of S.P.’s injuries and medical opinion that they could not have been self-inflicted;
the match between S.P.’s injuries and her descriptions of the attacks; S.P.’s reluctance to
report Hodkiewicz’s alleged actions; S.P.’s waiver of the no-contact order so Hodkiewicz
could attend their child’s birth; S.P.’s admission that she could not always see or identify
Hodkiewicz; and S.P.’s question to Langlois wondering “if I just give up my son, do you think
this will stop?” (Trial Day 6 part 1 Tr. 201–220, Docket # 12-18.) The prosecution also
reminded the jury of the need to consider S.P.’s demeanor in court and contrast it with
25
Hodkiewicz’s in assessing their credibility. (Id.)
In sum, Hendzel’s testimony came at the end of a lengthy trial and was offered as just
one of many reasons to impute motive to Hodkiewicz and discount his credibility. The court
of appeals’ conclusion that Hendzel’s testimony did not prejudice Hodkiewicz was therefore
not contrary to or an unreasonable application of Strickland, and Hodkiewicz is not entitled
to habeas relief on this claim.
2.5.
Misleading Testimony
At trial, Hodkiewicz’s next-door neighbor, Kyle Thorson, testified that he spoke with
Hodkiewicz in Hodkiewicz’s garage for an hour to an hour and a half between approximately
8:00 p.m. and 10:00 p.m. (Trial Day 5 Tr. 14–22, Docket # 14-16.) On cross-examination of
Hodkiewicz, the prosecution pressed Hodkiewicz on the fact that a timeline of his activities
that day created by Detective Wudtke after a conversation with Hodkiewicz did not mention
Thorson. (Docket # 14-16 at 47–48.) Hodkiewicz stated that he could not remember if he had
told Wudtke about his conversation with Thorson. (Id.) On the last day of trial, the
prosecution called Wudtke, who testified that if Hodkiewicz had mentioned it he would have
put it in the timeline. (Trial Day 6 part 1 Tr. 63–65, Docket # 12-18.)
Hodkiewicz argues that counsel was ineffective for failing to rebut the inference from
Wudtke’s testimony that Hodkiewicz and Thorson fabricated the alibi. Hodkiewicz points
out that trial counsel was aware of documents in discovery showing that both Hodkiewicz
and Thorson had reported the conversation to police just three to four days after the incident
and a month prior to Hodkiewicz’s meeting with Wudtke, and argues that counsel was
deficient for not using these prior statements to rebut the obvious inference from Wudtke’s
testimony. (Docket # 15 at 25.)
26
The court of appeals determined that any such failure did not prejudice Hodkiewicz.
(Docket # 1-2 ¶¶ 54–56.) The court explained that the prior statements “do not provide
anything remotely resembling an ironclad alibi.” (Id. at ¶ 55.) The court of appeals noted that
Hodkiewicz’s statement was vague as to the timing of his interactions with Thorson, and even
if the jury credited both statements, there was ample room in the timeline for Hodkiewicz to
have committed the assault anyway. (Id.) The court also pointed out that these prior
statements did not change the fact that Hodkiewicz failed to mention seeing Thorson when
he was interviewed by Wudtke, and that Thorson’s statement at trial that he began speaking
with Hodkiewicz around 8:00 or 8:30 p.m. was inconsistent with his earlier statement to
police that he went over to visit Hodkiewicz at about 10:00 p.m. (Id. ¶ 56.)
The court of appeals did not address Hodkiewicz’s argument that counsel failed not
only to protect Hodkiewicz’s alibi, but to expose the state’s attempts to mislead the jury.
Hodkiewiecz argues that “[b]ut for counsel’s failure to correct the misleading inference, the
jury would have known that Thorson had corroborated important aspects of Hodkiewicz’s
account when first contacted shortly after the alleged incident and, as importantly, the jury
would have known that the state was caught trying to mislead it. . . . A jury knowing the state
had tried to mislead it on one issue no doubt would be far more skeptical of its other evidence
and desired inferences.” (Docket # 15 at 35.) While it is possible that counsel’s attempt to
expose the state’s allegedly misleading evidence might have helped Hodkiewicz, this is not
clearly so. The jury might have concluded that the state had been trying to mislead them, but
it also might have been struck by the problems with Thorson’s statement. Thorson told police
four days after the incident that he saw Hodkiewicz’s exterior lights on between 7:00 and 7:30
p.m., that he then exchanged text messages with Hodkiewicz, that he saw the lights on in
27
Hodkiewicz’s garage around 9:00 p.m., and that he went over to visit Hodkiewicz around
10:00 p.m. (Docket # 10-4 at 113.) This leaves obvious windows in which Hodkiewicz could
have committed the assault. Furthermore, it is inconsistent with Thorson’s statement at trial
that he spoke with Hodkiewicz from approximately 8:30 p.m. to 10:00 p.m. Thus, it is not
clear that counsel’s rebuttal would have been helpful, let alone that it would have affected the
outcome of trial.
Because the court of appeals’ finding of no prejudice was reasonable, Hodkiewicz is
not entitled to habeas relief on this claim.
2.6.
Cumulative Effect
Hodkiewicz argues that the court of appeals ignored the cumulative effect of counsel’s
errors on the jury’s ability to assess S.P.’s credibility, the undermining of which was central
to Hodkiewicz’s defense. Indeed, a petitioner may demonstrate that the cumulative effect of
counsel’s individual acts or omissions was substantial enough to meet Strickland’s prejudice
test. Williams v. Washington, 59 F.3d 673, 682 (7th Cir. 1995) (citing United States ex rel. Kleba
v. McGinnis, 796 F.2d 947, 958 (7th Cir. 1986); Montgomery v. Petersen, 846 F.2d 407, 412 (7th
Cir. 1988)). But in this case, the court of appeals concluded that even the cumulative effect of
counsel’s claimed errors did not entitle him to a new trial (except on Counts 2 and 3). (Docket
# 1-2 ¶ 56 n.10.)
The courts of appeals’ determination that any cumulative effect of counsel’s errors was
not enough to warrant a new trial is not unreasonable or contrary to Strickland. It is true that
credibility was important in this case, as there was a notable lack of physical evidence tying
Hodkiewicz to these crimes. Nevertheless, the evidence of credibility was voluminous. The
jury heard both S.P. and Hodkiewicz testify along with dozens of witnesses, many of whom
28
corroborated aspects of S.P.’s testimony and/or undermined Hodkiewicz’s credibility. For
example, medical professionals testified that S.P.’s injuries were suspicious for assault and
could not have been self-inflicted. Multiple professionals—doctors, the domestic violence
counselor, and probation officers—testified that Hodkiewicz engaged in passive-aggressive,
confrontational, vindictive, and/or angry behaviors. Even if counsel might have somewhat
undermined S.P.’s credibility or the state’s case by doing everything Hodkiewicz suggests he
should have—objecting to the TracFone activation testimony, the “special privileges”
testimony, and the “work phone” testimony, and rebutting the “underground” testimony and
the inference that Hodkiewicz and Thorson fabricated Hodkiewicz’s alibi—that would have
done little to undermine all the other testimony supporting S.P.’s credibility.
A state court decision passes habeas review “if [the court’s conclusion] is one of several
equally plausible outcomes.” Hall, 106 F.3d at 748–49. Even if Hodkiewicz’s attorney
committed errors, the court of appeals’ conclusion that these errors did not affect the outcome
on most of the counts was not unreasonable or contrary to Strickland. Therefore, habeas relief
is not available on this claim.
3.
Double Jeopardy
Hodkiewicz argues that his conviction for both strangulation and suffocation in
violation of Wis. Stat. § 940.235(1) and bail jumping in violation of Wis. Stat. § 946.49(1) on
the basis of the strangulation and suffocation crime violated the Double Jeopardy Clause of
the Constitution. (Habeas Pet., Docket # 1 at 10.) Hodkiewicz asserts that because the
elements of the strangulation offense are entirely included within the elements of the bail
jumping offense, it is unconstitutional for him to be sentenced consecutively for both. (Docket
# 15 at 36–39.)
29
The Fifth Amendment to the Constitution provides that no person shall “be subject
for the same offence to be twice put in jeopardy of life or limb.” This provision is notoriously
difficult to apply, and “the [Supreme] Court’s [double jeopardy] jurisprudence is complicated
and often unclear.” Boyd v. Boughton, 798 F.3d 490, 493 (7th Cir. 2015). The starting point is
Blockburger v. United States, 284 U.S. 299 (1932). Boyd, 798 F.3d at 493. The Blockburger test
asks whether each offense requires an element that is not required by the other: if not, then
the two are the “same offense.” See Boyd, 798 F.3d at 494 (quoting Blockburger, 284 U.S. at
304 (“[W]here the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact of which the other does not.”)). “Put
differently, if Statute 1 requires an element that Statute 2 does not; and Statute 2 requires an
element that Statute 1 does not, then the statutes constitute different offenses. Otherwise, they
are the same offense for Blockburger purposes.” Id.
Although the Blockburger test sounds straightforward, its application has proved
problematic. For one thing, even convictions that violate the Blockburger test might still not
violate the Double Jeopardy Clause if the legislature intended separate punishments. Boyd,
798 F.3d at 501. “[S]imply because two criminal statutes may be construed to proscribe the
same conduct under the Blockburger test does not mean that the Double Jeopardy Clause
precludes the imposition, in a single trial, of cumulative punishments pursuant to those
statutes.” Missouri v. Hunter, 459 U.S. 359, 368 (1983). In such cases, “the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater punishment
than the legislature intended.” Id. at 366. See also United States v. Dixon, 113 S. Ct. 2849 (1997)
(prosecution for violation of civil protection order by committing offenses did not preclude
30
subsequent prosecutions for underlying offenses).
In Boyd, the Seventh Circuit painstakingly traced the Supreme Court’s double jeopardy
jurisprudence and applied it to Boyd’s claim that conviction for an underlying offense and
conviction under Wisconsin’s bail jumping statute based on the same offense violated the
Double Jeopardy Clause. The court pointed out that the lack of clarity in the Supreme Court’s
jurisprudence in this area is one reason Boyd’s habeas challenge failed under AEDPA’s
deferential standard. Id. at 500–01 (noting that the justices in Dixon articulated five different
interpretations of Blockburger). In other words, a state court decision cannot be contrary to or
an unreasonable application of clearly established federal law if the Supreme Court has not
clearly articulated the law, and it has not clearly articulated the law in this area. The Boyd
court then explained that the Supreme Court of Wisconsin had concluded that the legislature
intended that the bail jumping statute punish separate conduct (the act of violating a court
order) from any underlying offense, and that therefore the district court’s conclusion that the
convictions did not violate the Double Jeopardy Clause was not unreasonable. Id. at 501.
In this case, the court of appeals rejected Hodkiewicz’s double jeopardy claim because,
as he conceded, it ran afoul of Wisconsin Supreme Court precedent. (Docket # 1-2 ¶ 65.) In
his brief in support of this petition, Hodkiewicz concedes that Seventh Circuit precedent in
Boyd is also contrary to his position, and states that he raises this claim solely to preserve it
for appellate review. (Id. at 39.) Indeed, Boyd squarely rejects Hodkiewicz’s argument that
conviction under Wisconsin’s bail-jumping statute and conviction for the underlying offense
violates the Double Jeopardy Clause of the Constitution. 798 F.3d at 500–01. Because the
Wisconsin Court of Appeals’ decision was not contrary to or an unreasonable application of
federal law, Hodkiewicz is not entitled to habeas relief on this ground.
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CONCLUSION
To obtain habeas relief, Hodkiewicz must show that the state court’s decision was
contrary to or an unreasonable application of federal law. Hodkiewicz’s Ground One and
Two claims are procedurally barred. Hodkiewicz has not shown that it was contrary to or an
unreasonable interpretation of Strickland for the court of appeals to deny his Ground Three
claim of ineffective assistance of counsel. Hodkiewicz’s Ground Four claim of double
jeopardy is contrary to Supreme Court precedent as interpreted by the Seventh Circuit.
Accordingly, Hodkiewicz does not present any basis to grant relief under 28 U.S.C. § 2254.
The petition will therefore be denied and the case dismissed.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue or
deny a certificate of appealability “when it enters a final order adverse to the applicant.” A
certificate of appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing
of the denial of a constitutional right, the petitioner must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893, and n.4).
When issues are resolved on procedural grounds, a certificate of appealability “should
issue when the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.” Id.
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Each showing is a threshold inquiry; thus, the court need only address one component if that
particular showing will resolve the issue. Id. at 485.
Jurists of reason would not find it debatable that Hodkiewicz is not entitled to habeas
relief. Thus, I will deny Hodkiewicz a certificate of appealability. Of course, Hodkiewicz
retains the right to seek a certificate of appealability from the Court of Appeals pursuant to
Rule 22(b) of the Federal Rules of Appellate Procedure.
ORDER
NOW, THEREFORE, IT IS ORDERED that Hodkiewicz’s petition for a writ of
habeas corpus (Docket # 1) is DENIED;
IT IS FURTHER ORDERED that a certificate of appealability shall not issue;
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED;
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 24th day of September, 2019.
BY THE COURT:
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge
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